Belgium has filed a case in the ICJ against Senegal (see press release) with regard to Senegal’s failure to prosecute former Chadian Head of State, Hissene Habre. This is the latest episode in the long running saga regarding the possible prosecution of Habre. Habre is accused of torture and crimes against humanity committed in the 1980s against dissidents and political opponents during his period in office in Chad. Habre has been resident in Senegal since he was overthrown in 1990. Following the Pinochet precedent, attempts were first made in 2000 to institute criminal proceedings in Senegal against Habre. These attempts failed when the Senegalese courts held that Senegal lacked extraterritorial jurisdiction over the crimes because it had not passed the necessary legislation. Thereafter, proceedings against Habre were commenced in Belgium and, in 2005, a Beglian magistrate issued an international arrest warrant for Habre. After the African Union recommended prosecution in Senegal, that country amended its domestic law in order to provide jurisdiction for crimes against humanity, war crimes and genocide. However, no proceedings against Habre have been commenced in Senegal though he is said to be under house arrest.

In its Application to the ICJ Belgium, requests the Court to adjudge and declare that:

” – the Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as author, co-author or accomplice;
– failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for his crimes before the Belgian courts”.

Belgium has also requested provisional measures as the Senegalese President has suggested that Habre may be released from house arrest. Belgium asks the Court to indicate provisional measures requiring Senegal to take

“all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied”.

Belgium’s arguments regarding Senegal’s obligation to prosecute or extradite with regard to the crime of torture is based on the Convention against Torture. The existence of the obligation is incontestable as the obligation is explicit on the face of the Convention. I don’t know what arguments Senegal intends to deploy but it is possible that it would argue that Habre being a former Head of State is entitled to immunity from prosecution and criminal process. I don’t think it has used this argument in this saga. Its an argument that ought not to succeed and is unlikely to do so. The decision of the English House of Lords in Pinochet, though many of the opinions of the Law Lords are poorly reasoned, is authority for the view that there is no immunity ratione materiae (the immunity which attaches to official acts of state agents) for prosecutions for torture. The best interpretation of that case, is that immunity ratione materiae is logically inconsistent with the conferal of extraterritorial jurisdiction in the Torture Convention. The two cannot sit together and immunity ratione materie must be deemed to have been implicitly removed.

Belgium’s arguments regarding Senegal’s failure to prosecute or extradite Habre with regard to crimes against humanity are more problematic. According to the Belgian application:

“Senegal’s failure to prosecute Mr. H. Habré, or to extradite him to Belgium to answer for the crimes against humanity which are alleged against him, violates the general obligation to punish crimes against international humanitarian law which is to be found in numerous texts of derived law (institutional acts of international organizations) and treaty law”.

The case will test whether customary international law does oblige (as opposed to merely permit) States to prosecute for crimes against humanity. I am not aware of any treaty that provides such an obligation. The closest we get to this in a treaty is a part of the preamble to the Rome Statute of the International Criminal Court which recalls “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,”. However, there is no treaty that creates an obligation on States to prosecute persons for crimes against humanity committed outside the territory of that State. It is by no means clear that customary international law provides such an obligation and evidence of practice to support this would be hard to find.

The proceedings instituted by Belgium touch on two topics which the International Law Commission has recently begun to study. The first is the Immunity of State Officials from Foreign Criminal Jurisdiction (see here). The second is the Obligation to Extradite or Prosecute (Aut dedere aut judicare) (see here). One of the issues the ILC will have to tackle in the latter topic is whether such an obligation exists under customary international law. Both the latest report of the Special Rapporteur appointed to deal with the topic (see here) and the 2008 report of the ILC itself recognise that this is an issue that needs to be addressed. The Special Rapporteur at para. 124 of his report suggests that “the growing number of treaties establishing and confirming such an obligation may lead at least to the beginning of the formulation of an appropriate customary norm.” He cites with approval, the following statement:

“If a State accedes to a large number of international treaties, all of which have a variation of the aut dedere aut judicare principle, there is strong evidence that it intends to be bound by this generalizable provision, and that such practice should lead to the entrenchment of this principle in customary law.”

The problem with this argument is how does one generalise the treaty provisions in question. In particular, which crimes does it extend to. Afterall, the aut dedere aut judicare obligation exists in treaties dealing with all sorts of crimes of international concern and not merely, indeed not mainly, in respect of crimes under international law.

Another issue that may arise in these proceedings is whether Belgium’s claims are admissible. In particular, does Belgium have a sufficient legal interest with respect to the claim that Senegal is obliged to prosecute Habre. The issue here is about the enforcement of norms owed to a group of States but where breach does not specially affect any State. The obligation to prosecute under the Torture Convention is an obligation erga omnes partes as it is a collective obligation. Clearly, Belgium is specially affected by a refusal of Senegal to extradite Habre. However, the question is whether its position with respect to the obligation to prosecute is any different from that of any other State. Perhaps this can be regarded as an attempt at actio popularis by Belgium. But is there any reason why it should not be permitted. If it were not, the obligation to prosecute in the Torture Convention would be unenforceable.

5 Responses

This is the second case in ICJ where Belgium assert the universal jurisdiction principle. It will be interesting to see whether the court will stick to its decision in Arrest Warrant Case or make a differentiation in this case. Main Belgium problem certainly is in the court’s jurisdiction.

Dapo,
Thanks a lot for this quick and thorough reaction to a case that is probably going to keep us busy for some time. I believe, however, that things are even more complicated. First, as far the Torture Convention is concerned, this is not simply a case of erga omnes or erga omnes partes (Art. 48 para. 1 of the Articles on State Responsibility). Belgium has already opened an investigation and has sent a request of extradition – thus, it claims its own rights, not that of a third parties, rights it says it enjoys under the Torture Convention.
Under the Convention, however, there is an obligaton to prosecute that is conditional on the existence or non of an extradition request, but no obligation to extradite (see also the Nowak/McArthur Commentary on the UN Convention Against Torture, Article 7 paras 85-60).
Even if the duties under the Torture Convention are erga omnes partes (which I believe they are), imho they do not create an obligation to extradite in the absence of a respective extradition treaty. However, Belgium could claim erga omnes partes that Chad is under an obligation to prosecute.
The claim under crimes against humanity is indeed even more complicated. At this point, it is difficult to see whether or not a customary duty to prosecute exists.
A final note of caution: this is a blog contriubtion of a slightly experimental character. As I said, this case is going to keep the international law community busy for quite some time :-).
Kind regards, Andreas

One could argue that the Torture Convention does not itself create any obligation to extradite. If there is any such obligation it is to be found in extradition treaties between the State parties and it would be subject to any exceptions in that treaty.

There is also the argument that the Torture Convention does not create an obligation to prosecute either but rather only an obligation to submit the case to prosecuting authorities. See the exchange on opinio juris which I refer to in my post on prosecution of US officials for Torture. So the question then becomes, has Senegal fulfilled its obligation here. Has it submitted the case to its prosecution authorities and do those authorities have a good enough reason for their failure to prosecute. Are the financial reasons that Belgium cites in its application, sufficient. Art. 7 (2) provides that the authorities of the detaining State shall take their decision as to whether to prosecute or not “in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.” Does this mean that if financial reasons are normally employed by Senegal in its decision making then it is lawful for it to use them here? Or are there grounds which international law would disallow though domestic law might allow?

My point about the obligation to prosecute (or to submit for prosecution) being erga omnes parties is that Belgium’s position appears to be no different from that of any other State. Sure Senegal’s refusal to extradite affects Belgium specially since what we have is a failure to extradite to Belgium. But the failure to submit for prosecution comes after that. Belgium’s interest here is to prevent impunity and to uphold the Convention so it appears to be in the same position as every other State as the failure to prosecute is not related to the refusal to extradite. Unless one says that what Belgium seeks to vindicate is the right that crimes within its jurisdiction (passive personality jurisdiction) do not go unpunished. There it would be in a special position. However, even without this latter argument, Art. 48 of the ILC Articles on State Responsibility (dealing with obligations erga omnes) ought to be sufficient legal basis for the admissibility of the Belgian claim.

Dapo,
No disagreement between us. A mere clarification on your last paragraph: Belgium’s claim is not erga omnes (partes) when it simply demands extradition under an extradition agreement or the Torture Convention or customary law, even if it has assumed universal jurisdiction. However, if Belgium brings its claim in the way the press release suggests, namely that Senegal should fulfil its obligations under the Torture Convention and general international law to prosecute OR extradite (to Belgium or anybody else willing to prosecute), this claim could ge said to rely on the erga omnes (partes) doctrine. This is a great opportunity to finally get erga omnes into the ratio decidende of an ICJ case!
Best, Andreas

As I read in the Belgium´s ICJ request, Belgium is filing his case on ground of articles from the Convention against Torture and International customary law.

I would have like to see Belgium strenghening his case by using some general principles of law or judicial decisions and teachings of the most highly qualified publicists of the various nations (art 38 c. & d. ICJ statutes).

Just for the sake of it, what do you think it would then have been relevant to use?

Regards,
Robin

About the Author(s)

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Fellow of Exeter College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict. Dapo is a member of the Editorial Board of the American Journal of International Law, an Emeritus Editor of the European Journal of International Law; and a member of the advisory board of several other journals. He is a Counsellor of the American Society of International Law, a Trustee of the British Institute of International and Comparative Law and a member of the Africa Group for Justice and Accountability. Read Full